[Code of Federal Regulations]
[Title 17, Volume 2]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR230.165]

[Page 505-506]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER II--SECURITIES AND EXCHANGE COMMISSION
 
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933--Table of Contents
 
Sec. 230.165  Offers made in connection with a business combination transaction.

    Preliminary Note: This section is available only to communications 
relating to business combinations. The exemption does not apply to 
communications that may be in technical compliance with this section, 
but have the primary purpose or effect of conditioning the market for 
another transaction, such as a capital-raising or resale transaction.

    (a) Communications before a registration statement is filed. 
Notwithstanding section 5(c) of the Act (15 U.S.C. 77e(c)), the offeror 
of securities in a business combination transaction to be registered 
under the Act may make an offer to sell or solicit an offer to buy those 
securities from and including the first public announcement until the 
filing of a registration statement related to the transaction, so long 
as any written communication (other than non-public communications among 
participants) made in connection with or relating to the transaction 
(i.e., prospectus) is filed in accordance with Sec. 230.425 and the 
conditions in paragraph (c) of this section are satisfied.
    (b) Communications after a registration statement is filed. 
Notwithstanding section 5(b)(1) of the Act (15 U.S.C. 77e(b)(1)), any 
written communication (other than non-public communications among 
participants) made in connection with or relating to a business 
combination transaction (i.e., prospectus) after the filing of a 
registration statement related to the transaction need not satisfy the 
requirements of section 10 (15 U.S.C. 77j) of the Act, so long as the 
prospectus is filed in accordance with Sec. 230.424 or Sec. 230.425 and 
the conditions in paragraph (c) of this section are satisfied.
    (c) Conditions. To rely on paragraphs (a) and (b) of this section:
    (1) Each prospectus must contain a prominent legend that urges 
investors to read the relevant documents filed or to be filed with the 
Commission because they contain important information. The legend also 
must explain to investors that they can get the documents for free at 
the Commission's web site and describe which documents are available 
free from the offeror; and
    (2) In an exchange offer, the offer must be made in accordance with 
the applicable tender offer rules (Secs. 240.14d-1 through 240.14e-8 of 
this chapter); and, in a transaction involving the vote of security 
holders, the offer must be made in accordance with the applicable proxy 
or information statement rules (Secs. 240.14a-1 through 240.14a-101

[[Page 506]]

and Secs. 240.14c-1 through 240.14c-101 of this chapter).
    (d) Applicability. This section is applicable not only to the 
offeror of securities in a business combination transaction, but also to 
any other participant that may need to rely on and complies with this 
section in communicating about the transaction.
    (e) Failure to file or delay in filing. An immaterial or 
unintentional failure to file or delay in filing a prospectus described 
in this section will not result in a violation of section 5(b)(1) or (c) 
of the Act (15 U.S.C. 77e(b)(1) and (c)), so long as:
    (1) A good faith and reasonable effort was made to comply with the 
filing requirement; and
    (2) The prospectus is filed as soon as practicable after discovery 
of the failure to file.
    (f) Definitions.
    (1) A business combination transaction means any transaction 
specified in Sec. 230.145(a) or exchange offer;
    (2) A participant is any person or entity that is a party to the 
business combination transaction and any persons authorized to act on 
their behalf; and
    (3) Public announcement is any oral or written communication by a 
participant that is reasonably designed to, or has the effect of, 
informing the public or security holders in general about the business 
combination transaction.

[64 FR 61450, Nov. 10, 1999]